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No dilemma between Draper and Shelbina

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Posted: Thursday, December 6, 2012 5:51 am

Eric E. Vickers, the activist attorney, is famous for issuing emails with vast cc: lines that often take issue with one or more of the many people copied on the message. Here is one he sent out this week, copying The American’s Executive Editor Donald M. Suggs and the EYE:

“It appears that Paul McKee's proposed Northside plan presents The St. Louis American with a dilemma. For while The American has thoroughly skewered and castigated Judge Robert Dierker for his decision to void McKee's proposal for being only a plan and not a project, his decision rests squarely and entirely on the well reasoned appellate decision of Supreme Court Justice George W. Draper III, who established the legal precedence for a project being required of a developer receiving TIF financing – and not simply a plan – in his 2008 appellate court ruling voiding a development proposal by the City of Shelbina, Missouri. The American was right to advocate for Justice Draper being appointed to the Supreme Court. And Judge Dierker is right in relying on the Shelbina decision.”

This matter came up before the Missouri Supreme Court during oral arguments on Northside’s appeal on Nov. 28. Draper, who initially recused himself from the Northside appeal, surprised many by showing up on the bench. As Rebecca S. Rivas reports on 1A this week, Judge Draper specifically asked Northside attorneys how their case is different from City of Shelbina vs Shelbina County. In that case, the court shot down two TIF ordinances because the city did not specifically define a redevelopment project in its plan. Under the TIF law, a project must be adopted before any TIF ordinances can be passed.

Gerard Carmody, attorney for the City of St. Louis, responded to Draper saying, “The City of Shelbina did not have a developer [like McKee] who had invested $27 million in the project area. It did not have a developer that had purchased 880 parcels of property that nobody in private enterprise would touch or has touched in decades.”

Paul Puricelli, attorney for Northside, made the point even more emphatically in a brief before the court. “In Shelbina, the City of Shelbina had approved TIF financing for an admittedly conceptual redevelopment plan, the ‘primary purpose’ of which was to ‘enable the City to select redevelopers to carry out the redevelopment program activities envisioned by the plan,’” Puricelli writes. “The city had not approved or executed a redevelopment agreement with a redeveloper; in fact, the city has only just solicited proposals for the redevelopment of a portion of the redevelopment area. All the city had was an idea. The city had not approved ‘any specific redevelopment projects .... nor had undertaken acts to establish a redevelopment project ...’”

Puricelli goes over the same ground in even more detail in a response brief before the court. In Shelbina, he writes, “the city assume[d] that multiple redevelopment projects will be undertaken over the life of the Plan” and issued a request for proposals seeking a private developer. The City [of Shelbina]’s plan explicitly ‘anticipated’ the future identification of a redeveloper and redevelopment projects. The Court of Appeals ruled that the city’s unrealized effort to attract redevelopment, without more, did not constitute a redevelopment project. The city there could not claim a development project because it could not even represent a developer was willing to sign on the dotted line.”

The American stands by its support of Judge Draper’s appointment to the high court. However, the EYE feels that Draper will show his sound legal judgment in ruling that the narrow precedent he established in Shelbina does not pertain to a redevelopment project that actually has a redeveloper and a redevelopment agreement.


‘Bulls-eye’ begging

Vickers is not a disinterested bystander in this matter; he is one of three attorneys representing plaintiffs who intervened in the original suit filed against Northside. Vickers stands to benefit personally at McKee’s expense – if only the Supreme Court listens to his and his colleagues begging for the court to order for McKee to pay their legal fees. Dierker turned a deaf ear when they rattled their cup in the original trial, and though Dierker ruled with the interveners in points of law, they savaged the judge in their briefs to the Supreme Court because he didn’t hook them up with their payday.

Here is an example – one of many.

“While Intervenors concede that there is no direct evidence of outright bribery, or anyone being ‘in the pay,’ Intervenors suggest that the misconduct demonstrated in the materials precisely does show manipulation of the legislative process, and Intervenors further suggest that they are the ones in the bulls-eye to receive the ill effects of that manipulation in the form of a reduction of their property values as a result of the blight designation and threat of eminent domain,” Vickers and his colleagues write.

The blight issue would require a longer discussion than space allows, but the threat of eminent domain is alarmist false rhetoric. The EYE is certain McKee would have taken the right to eminent domain had he been able to finagle it, but he was not. Both the Land Assemblage Tax Credit legislation that lavishly benefitted his project and the Northside redevelopment agreement with the city expressly forbid the use of eminent domain. Further, in filings presently before the Missouri Supreme Court, Northside restates again for the record that the developer has not and will not use eminent domain to acquire property for this project. Nothing like stating something for the record before the highest court in the land to make your point.

But Vickers, W. Bevis Schock and their colleague are not reasoning. They are whining. They continue, “Is not that reckless and punitive? Does it not show bad faith? Are these not special circumstances? Did it not cause them to come to court and incur litigation expenses to protect themselves?” They carry on like this, believe it or not, for several more pages. The EYE is certain that Judge Draper and his colleagues will be as deaf to their supplications as was Dierker.


What not to do

Here is how you don’t seek employment for your friends and family at a city patronage office. You do not back a candidate for that office who loses and accept money from that losing candidate for your own committeeman campaign, and then approach the winner you tried to beat and say, “I need two jobs in your office.” That is not how you do it.

  • Discuss

Welcome to the discussion.

1 comment:

  • MTLUMPKINS posted at 2:51 pm on Wed, Dec 12, 2012.

    MTLUMPKINS Posts: 12

    well according to the section of ( bulls eye begging ).....3rd paragraph, first sentance refers to ALARMIST RHETORIC..and yet in the final sentances that the Northside redelopement agreement with the city forbids this action, ( EMINENT DOMAIN ) reading this makes me just laugh myself silly,in that in all of the papers that thru out the whole mckee/ slay fiasco,that from the very beginning that no eminent domain would be used with out the approval of the alderman,and yet Northside states on the record that they ( mckee) would not use eminent domain,but in the STL AMERICAN posted on 11-12-2009... printed out at 4:49 am, under EMINENTLY NEGOTIABLE,according to Mr.Vickers that mckee was able introduce into a NEW AGREEMENT the use of EMINENT DOMAIN with the CITY OF ST.LOUIS,and that the alderman voted on it for him to use it. So I assume that means he got the green light to evict home owners,rather he did or not,that means as for as I see when your paper states that before the Supreme Court of Missouri,that whom-ever made the statement ( HAS NOT AND WILL NOT USE EMINENT DOMAIN TO ACQUIRE PRROPERTY FOR THIS PROJECT ) OPENLY PERJURED THEM SELVES! In that mckee/northside has already signed sealed and delivered to our CITY OF ST.LOUIS,his intentions of using EMINENT DOMIAIN as his so called legal strategy to take home owners rightfull property. And this makes slay and all the alderman and women who signed off on this back on ( 11-12-2009 ).Guilty on the same count...PERJURY before the Missouri Suprme Court. Guilty before and after the fact!! I am still waiting for some kind of proof that mckee can even do this project,as JUDGE DIERKER,staed in his court brief,he wanted to see the plans ( blue prints and all other plans) as all other construction projects or required to do.Case in point,the NORTHSIDE REC CENTER,before there was any ( shovel in the dirt ) all blue prints and approriate plans had to be in place.Large or small projects everyone has to produce these documents.And S.M.WILSON,even having gave $30,000 in campaign contributions to slay still had to produce all these documents,How much did mckee contribute to slay,not to have to show anything along with all the alderman and women who were so quick to jump on this mckee/slay project? And as for one citizen of my CITY OF ST.LOUIS,I take my hat off to Judge Dierker,to at least slow down this project.And who cares if mckee walks away,the CITY OF ST.LOUIS can take all his property back under the same thing mckee/slay was going to do ( EMINENT DOMAIN...remember slay was going to do it over on Kingshighway and CHIPPEWA, when I believe the Sansone Group was sitting on that property all those years doing nothing.How quick did a prosperous shopping center pop up there now. So the city takes over mckee/slay properties and how quick do think someone like CLAYCO CORP. OR THE SANSONE GROUP wouldn't want to buy that property from the CITY OF ST.LOUIS... OH YEAH let me get a realtors license and cash in on that money wagon. And see how fast new houses get put up,and not at a rediculous priceing of $400,000 per house,and the funny part of that was when Northside hired a focus group to see who would want to buy these over priced houses,they came back and said the policeman and fireman would be interested,funny all of both groups don't recall any body from this focus groupocoming around and asking them if they would be open to this sale! So now that it appears that some one PERJURED them selves I hope that some one pursues this.I mean I really expect some one to come back and state that since mckee /northside really did n't mean it.If that's the case I truly hope I read it in any publication except the STL AMERICAN. Because refering to Judge Dierker as being deaf on this issue is really wrong on your part.Remember all mckee had to do was show up in court with his plan of action on this project ( BLUE PRINTS ) of this project,as all contractors must do. He chose not to appear,only for one reason,he would have had to PERJURE did take note that he did appear at the appeal 22nd Appeal Court Hearing,knowing that he would not be called to testfy and in all likely PERJURE HIMSELF. But according to your above article it's been done,and according to your past news article your paper has, I assume proof of perjury.And he showed up at Jeff.City,Mo. also. Got to make you think what was he afraid of at the first court with Judge Dierker!